Citation Nr: 9932943
Decision Date: 11/23/99 Archive Date: 12/01/99
DOCKET NO. 98-02 276 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUE
Entitlement to an increased (compensable) rating for residual
scars of the right forearm and elbow.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
J. L. Tiedeman, Associate Counsel
INTRODUCTION
The veteran served on active duty from December 1972 to
November 1974.
This matter comes before the Board of Veterans' Appeals (the
Board) on appeal from a rating decision of the Department of
Veterans' Affairs (VA) Regional Office (RO) in Jackson,
Mississippi.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of this appeal has been obtained by the RO.
2. Current objective findings indicate that the veteran's
residual scars of the right forearm and elbow are well-healed
and nontender; there are no findings of any ulceration, poor
nourishment or limitation of range of motion of function.
CONCLUSION OF LAW
The criteria for a compensable rating for residual scars of
the right forearm and elbow have not been met. 38 U.S.C.A.
§§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7,
4.10, 4.31, 4.41, Diagnostic Codes 7803, 7804 and 7805
(1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
As a preliminary matter, the Board finds that the appellant's
claim for an increased rating is "well-grounded" within the
meaning of 38 U.S.C.A. § 5107(a). See Murphy v. Derwinski, 1
Vet. App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet. App.
49, 55 (1990). That is, the Board finds that the appellant
has presented a claim which is not implausible when the
contentions and the evidence of record are viewed in the
light most favorable to such claim. Generally, an allegation
that a service-connected disability has increased in severity
is sufficient to establish well groundedness. Proscelle v.
Derwinski, 2 Vet. App. 629, 631-32 (1992).
Likewise, the Board is satisfied that all relevant facts have
been properly and sufficiently developed, such that no
further assistance to the appellant is required to comply
with the duty to assist mandated by 38 U.S.C.A. § 5107(a).
The evidentiary assertions of the veteran are presumed
credible for making this determination. In adjudicating
well-grounded claims, the Board determines whether (1) the
weight of the evidence supports the claim, or (2) the weight
of the "positive" evidence in favor of the claim is in
relative balance with the weight of the "negative" evidence
against the claim. The veteran prevails in either event.
However, if the weight of the evidence is against the
appellant's claim, the claim must be denied. 38 U.S.C.A.
§ 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet.
App. 49 (1990).
In the evaluation of service-connected disabilities, the
entire recorded history, including medical and industrial
history, is considered so that a report of a rating
examination, and the evidence as a whole, may yield a current
rating which accurately reflects all elements of disability,
including the effects on ordinary activity. 38 C.F.R.
§§ 4.1, 4.2, 4.10, 4.41. Where, as in this case, entitlement
to service connection has been established already and an
increase in the disability rating is at issue, the present
level of disability is of present concern. Although a rating
specialist is directed to review the recorded history of a
disability in order to make a more accurate evaluation (see
38 C.F.R. §§ 4.2, 4.41), the regulations do not give past
medical reports precedence over current findings. Francisco
v. Brown, 7 Vet. App. 55, 58 (1994). In this case, the most
current clinical evidence of the present level of disability
is a June 1997 VA evaluation.
By way of history, the veteran's service medical records show
that in December 1973 he was treated for a laceration to his
right forearm after putting his arm through a window pane.
In October 1974, a small lesion (mole) was removed from his
right arm. In July 1989 the veteran was granted service
connection for scars of the right forearm and excision of
lesion, laceration. A noncompensable evaluation was
assigned.
More recently, in a June 1997 VA examination was conducted.
The examiner referred to left side scars, but was to examine
the service connected disorder. It has not been indicated
that the veteran has left side scars. As such, it is
presumed that the right elbow and forearm scars are those
described. On examination, it was indicated that the veteran
had a 3 centimeter "left" volar medial elbow scar which was
well-healed and nontender. The veteran also had a 6
centimeter scar in the distal aspect of the "left" volar
forearm which was well-healed and nontender. Two more scars
were present on the ulnar volar proximal forearm, both of
which were well-healed and nontender. No range of motion
limitation or functional limitation was noted. An
examination during a VA hospitalization for other matters in
April and May 1997, also noted that the scar on the veteran's
right forearm was well-healed and nontender.
The RO has rated the veteran's scars under Diagnostic Code
7085, which directs that scars be rated on limitation of
function of the part affected. 38 C.F.R. § 4.118, DC 7805
(1999). Scars can also be rated under DCs 7803 and 7804, and
the Board will consider these codes as well. To be assigned
a 10 percent evaluation for a superficial scar, it must be
tender and painful on objective demonstration, or poorly
nourished with repeated ulceration. 38 C.F.R. § 4.118, DCs
7803, 7804 (1999). In every instance where the schedule does
not provide a zero percent evaluation for a diagnostic code,
a zero percent evaluation shall be assigned when the
requirements for compensable evaluation are not met.
38 C.F.R. § 4.31.
In this case, the veteran's symptoms do not approximate the
standard of a 10 percent evaluation under DC 7803 or DC 7804,
as the veteran's scars are neither poorly nourished with
repeated ulceration, nor tender and painful on objective
demonstration. Further, there is no limitation of function
of any part affected warranting a compensable evaluation
under DC 7805.
The Board has considered 38 C.F.R. § 3.321 which provides
that in exceptional cases, when the evaluations provided by
the rating schedule are found inadequate, an extraschedular
evaluation commensurate with the average earnings capacity
impairment due exclusively to the service-connected
disability may be approved provided the case presents such an
exceptional or unusual disability picture with such related
factors as marked interference with employment or frequent
periods of hospitalization as to render impractical the
application of the regular schedular standards. The findings
in this case, however, clearly do not present such an
exceptional or unusual disability picture as to render
impractical the application of the regular schedular
standards. Under such circumstances, the Board finds that
the impairment resulting from the scars is adequately
compensated as noncompensable, and the provisions of
38 C.F.R. § 3.321 are inapplicable.
The Board has considered the written statements that his
scars are worse than currently evaluated. Although his
statements are probative of symptomatology, they are not
competent or credible evidence of a diagnosis, date of onset,
or medical causation of a disability. See Grottveit v.
Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2
Vet. App. 492, 494-95 (1992); Miller v. Derwinski, 2 Vet.
App. 578, 580 (1992). As noted, disability ratings are made
by the application of a schedule of ratings which is based on
average impairment of earning capacity as determined by the
clinical evidence of record. The Board finds that the
medical findings, which directly address the criteria under
which the service-connected disability is evaluated, more
probative than the subjective evidence of an increased
disability.
The VA has a duty to acknowledge and consider all regulations
which are potentially applicable based upon the assertions
and issues raised in the record and to explain the reasons
used to support the conclusion. Schafrath v. Derwinski, 1
Vet. App. 589 (1991). These regulations include, but are not
limited to, 38 C.F.R. § 4.1, that requires that each
disability be viewed in relation to its history and that
there be an emphasis placed upon the limitation of activity
imposed by the disabling condition, and 38 C.F.R. § 4.2 which
requires that medical reports be interpreted in light of the
whole recorded history, and that each disability must be
considered from the point of view of the veteran's working or
seeking work.
These requirements for the consideration of the complete
medical history of the claimant's condition operate to
protect claimants against adverse decisions based upon a
single, incomplete or inaccurate report and to enable the VA
to make a more precise evaluation of the level of disability
and any changes in the condition. The Board has considered
these provisions, taking into consideration the objective
findings as well as the subjective statements of the veteran,
and finds the veteran's scars warrant no more than the
current noncompensable evaluation. At such time as there is
a worsening of the scars, he is free to reopen his claim and
offer support for the contention.
ORDER
Entitlement to an increased (compensable) evaluation for
residual scars of the right forearm and elbow is denied.
MICHAEL D. LYON
Member, Board of Veterans' Appeals